CAUTIONARY TALES OF INDISCREETE - MAIL Wrongdoing at Computer Associates and at Enron, once giants in their respective industries, was brought to light by forgotten and/or deleted e-mails. The recovered e-mails brought down guilty individuals, but caused some innocents to suffer as well. COMPUTER ASSOCIATES In 2000, Charles Wang, chairman of Computer Associates (CA), a business software development giant, was number one on Forbes's list of wealthiest people with earnings of $650 million, $649 million of which was performance-based.

However, early in 2002, federal investigators began investigating Computer Associates for improperly booking more than $2 billion in revenue. It had apparently become common practice for executives to keep quarterly reports open so that later deals could be backdated, making the quarterlies look better. By the end of 2002, Wang had been retired to an honorary, uncompensated position, largely because of the accounting discrepancies being investigated. Computer Associates' Board of Directors, hoping to avoid the sort of disaster that killed Arthur Andersen, hired experienced criminal lawyers to conduct an investigation to get to the truth.

After searching hundreds of employee computers, the investigation turned up e-mails, deleted and saved, that provided evidence of fraud. These e-mails were not on the main system, but rather were stored on individual machines. By April 2004, three former executives of the company had pled guilty to obstruction of justice charges and by September that number had risen to seven who had pled guilty or been indicted. The obstruction of justice charges came from the top executives' misleading the independent lawyers about the facts of their actions, knowing that the falsehoods would be passed on to federal investigators. Attorney-client privilege did not apply since the outside lawyers were hired to do an independent investigation and did not represent individual executives.

By the time the main part of the investigation was over, most of the top-level executives of CA had been fi red. ENRON When the Federal Energy Regulatory Commission (FERC), which was investigating Enron, unearthed and published confiscated e-mails, not only Enron's employees got a nasty shock when their old e-mails turned up on the Web. Everyone who had sent e-mails to Enron e-mail addresses found themselves caught in the federal net.

So, people who were never accused of wrongdoing and didn't even work at Enron suddenly found their e-mail messages displayed for all the world to see, even if the message was as innocent as the confirmation of a golfi ng date. FERC gathered a boatload of records, paper and electronic, during its investigation of Enron's alleged energy-market manipulations.

In March 2003, FERC posted 1.6 million e-mail messages and other documents on the Web in a searchable database. The e-mails are from the period 2000-2003. So anyone can go to the Web site ( www.ferc.gov/industries/electric/ indus-act/wem/03-26-03-release.asp) and easily view the e-mails and calendars of 176 current and former Enron employees. The e-mails appear in full-including sender and receiver names.

Among the e-mail messages are lots of personal communications like executives discussing employees and vice versa; romantic messages; discussions of breakups (liaisons and marriages); in-law problems; personal photos, and so on. FERC said that, since Enron owned the messages, it was incumbent on the company to identify personal communications and request their exclusion. A couple of days after the e-mail database appeared on the Web, FERC agreed to take off the most sensitive documents, like a document that listed the Social Security number of every employee.

In early April, on the order of a U.S. Court of Appeals, the database was shut down for 10 days to allow Enron to examine all the documents and make up a list of documents it wanted removed. About 100 Enron volunteers spent 350 hours going through hundreds of thousands of e-mails looking for specific terms like "Social Security Number," "credit card number," "kids," and "divorce." FERC removed about 8 percent of the database, which amounted to about 141,000 documents. 40,41

Questions:-

1. If you were to give advice to someone who had just started using e-mail, or even someone who's been using e-mail for a while, what would you tell that person should be the one guiding principle in all their e-mail communications? Put your advice into one sentence.

2. Now expand on your one guiding principle in question 1, and offer 10 rules for writing e-mails. What should those 10 rules be?

3. Imagine you're a manager in a lawn care business and you have an office staff of fi ve people. Your lawyer suggests that you issue guidelines or rules to your staff about storing e-mail on the company's server and on the computers they use in their work for you. What should those guidelines be? What would the rules be? Be sure to explain your rationale.

4. Do you think there should be federal guidelines governing a business's e-mail traffic just as there are regarding a business's fi nancial records? If so, what should they be? If not, why not?